The Problem With Consent

TW: This piece contains discussions of sexual assault and common victim-blaming allegations.

Consent. We try to encourage it, require it, make it sexy and cool and fun. But the problem with our cultural outlook on consensual sex goes much deeper than we like to think about.

In our legal system, consent is an essential element in determining whether a defendant is guilty of a sexual offense. For the judiciary to interpret the law correctly, and for juries to have adequate direction, meticulously defining consent is fundamental. However, as is to be expected in a patriarchal society, the definitions of consent and rape are so gendered that they have become hugely problematic. This prevents us from reaching a point where both the law and society are able to deal adequately with rape.

The UK Sexual Offenses Act of 2003 (SOA) defines consent as “the voluntary agreement of the complainant to engage in the sexual activity in question.” Assuming that the person in question had both the freedom and the capacity to consent, the question is whether they agreed to the activity by choice, not by coercion or force.

If one person “does not reasonably believe” that the other consents, and they continue to pursue sexual behavior regardless, they are committing a sexual offense. End of story.

And so we come to the first problem: the way consent is misused in adjudicating rape cases. For the most part, rape victims themselves are considered the key component in the issues surrounding consent. That’s where common victim-blaming notions come into play: “She was drunk,” “she sleeps around anyway,” “she was wearing a low-cut top and a miniskirt,” “we’d had sex before,” and so on.

But as we well know, there is nothing wrong with being drunk, or choosing to dress how you wish, or having regular sex. There is something wrong, though, with a person targeting someone who is no longer capable of consenting because they are intoxicated, or forcing someone to sleep with them simply because they’ve slept together once before.

When we look at consent in these terms, it’s natural for those who want to promote pleasurable, consensual sex to move away from the old “no means no” mindset and head towards the concept of affirmative consent: “yes means yes.” Affirmative consent is not just about getting permission, but about making sure sexual encounters are based on mutual desire and enthusiasm.

So with affirmative consent, or “yes means yes,” we imply that women have the power to be their own agents when it comes to sex and consent. And while this is a wonderful ideal to strive towards, it ignores the reality that women say yes sometimes out of fear, and sometimes as a result of coercion.

While every no means no, not every yes means yes.

“Yes means yes” posits consent as a sexy new toy women should bring to the bedroom. But what do we achieve in attempting to get men to properly understand consent if we do so through sexually objectifying the women who give it? Treating consent as “sexy” leads to disconcerting representations of what should be a given: “Oh, look how sexy consent is! Let’s make an advert for a campaign of a woman looking down the camera and saying yes.”

But consent should not, and cannot, be made sexy, not when “sexy” is defined by patriarchy and the male gaze. “Sexy consent” is still designed to satisfy the male gaze without taking the preference of the person giving consent into consideration. We’re simply pandering to men while simultaneously throwing women under the bus.

And these problems are thoroughly entangled with the general non-neutrality of the law and the much-gendered definition of rape.

Under UK legislation, a person commits rape if they have oral, anal, or vaginal sex with another person who does not consent to it. This definition requires penetration of the mouth, anus, or vagina with a penis. If this penetration occurs with any object (other than a penis), then it is classed as sexual assault. Thus, according to this narrow interpretation of the law, rape is a crime that only the male-bodied can commit.

While the law in the US may be different (the definition of rape includes other sorts of penetration), rape is still overwhelmingly portrayed as a male-on-female crime in popular culture and the mainstream culture. This phallocentric conceptualization of rape as a “male” crime erases the reality that rape exists beyond the heteronormative paradigm of man attacking woman. Furthermore, it counterintuitively reinforces the very stereotypes about male and female sexuality rapists rely on to justify their actions: that male (heterosexual) sexuality is active, aggressive, and dominating, and female (orientation largely irrelevant) sexuality is passive, submissive, and subordinate.

According to the law, then women are passively waiting around ready to submit to any man who comes along. And according to society, all sex is inherently good, pleasurable, and wanted, and we are all just waiting to scream “yes” from the rooftops.

Unfortunately, we have yet to come across a model of consent that works without fault under the patriarchy and the gender roles it constructs. Solving the issue of consent is a long way off.

However, we must continue to talk about consent. It needs to be part of our sex education programs. It needs to be something that we learn and understand from a young age.

Typically, sex education is used mostly to frighten teenagers into not doing it, in the style of Coach Carr from Mean Girls:

However, abstinence-only sex education doesn’t teach teens anything about the reality of sex, and so they turn to porn and the media to learn about it.

And so in order to counteract the downright dangerous lessons porn is teaching our young people, we need to start talking about sex and unlearning gender stereotypes. Instead of allowing these conversations to be unofficially outsourced to the porn industry, we need comprehensive sex education to teach our young generation about healthy sex and relationships.

If we can stop seeing and learning about sex from the dominant patriarchal perspective, we can encourage and respect mutual pleasure, and empower girls to believe that they do have a voice in the bedroom.

Sex education should not just be about STIs and unwanted pregnancies; it should also discuss love and pleasure and relationships. It needs to teach us about a variety of relationships and equip us with the tools and confidence to talk about sex and what we want. In doing so, we may finally bring up a generation that truly understands consent.